For the purposes of these Terms of Service ("Terms of Service"):
"Service" or "Services" means the services Yak provides to You, including, as the case may be, long distance voice services ("Yak Long Distance"), wireless long distance voice services ("Yak Mobile Long Distance"), calling card services ("Yak Travel Card"), dial-around long distance voice services ("Yak Dial-Around"), direct bill dial-around services ("Yak Direct Bill Dial-Around"), high speed internet services ("Yak High Speed Internet"), primary local and long distance services ("Yak Home Phone") and residential Voice over Internet Protocol telephony services ("Yak Digital Phone");
"user" includes any person (including but not limited to you ("You" and "Your"), that uses or accesses the Service(s)); and
"Yak" means Yak Communications (Canada) Corp.
These Terms of Service start and are legally binding on You when You accept these Terms of Service as evidenced by Your subscription to, use and or payment for Yak's Services. For each Service You use, You agree to pay all the current rates included by reference in these Terms of Service. The rates for any Services may be changed by Yak from time to time without prior notice. Current rates can be found at the service specific links below. If You do not agree to these prices, charges, terms and conditions, do not use the Services.
These Terms of Service may be changed and updated from time to time by Yak. Yak will post updated terms of Service on its website (www.yak.ca) and may additionally give notice of any changes by letter, monthly bill or otherwise. Your continued use of the relevant Services thereafter will be deemed acceptance by You of such changes. Please keep visiting our web site for the latest Terms of Service.
Use of Service
You agree that You will use the Services only for lawful purposes. You acknowledge that Yak may terminate Service immediately, without any notice and without any liability to You whatsoever, if, at the sole and unfettered discretion of Yak, You or any other user of the Services provided to You misuses or permits others to misuse or abuse any Service for purposes that are contrary to law or contrary to these Terms of Service, or in order to preserve the integrity of Yak's network, or to comply with any applicable laws, regulatory orders or tariffs.
You acknowledge and agree that You shall be liable for any and all use of the Services associated with Your account or Your phone number, and You remain solely responsible for all use of service ordered or billed to Your telephone number(s), including any unauthorized use, and for determining who is authorized to use the Services in Your place, and for promptly notifying Yak of any unauthorized use. You agree to indemnify and hold harmless Yak against any and all fees, charges, damages, liability, costs and expenses (including reasonable legal counsel fees, as applicable) associated with such use.
Yak provides the Services to You as an independent contractor. The employees or agents of participating carriers are not and shall not be deemed to be agents or employees of Yak.
In subscribing for the Services, You obtain no proprietary right or interest in, any particular facility, service, equipment, telephone number or code associated with the Services (except as mandated by the CRTC in respect to telephone number porting where available). Yak will notify You if it decides to change or re-assign any telephone number assigned to You.
Termination by Yak
Yak may suspend or terminate Service, without any liability to You whatsoever, if You (or any other user of the Services, as may be applicable): fail to pay Your account that is past due; fail to meet Yak's credit requirements; become bankrupt or otherwise insolvent; harass, threaten or otherwise act unreasonably towards Yak, its employees or agents; are in breach of these Terms of Service; use the Services so as to prevent fair and proportionate use by others; use the Services contrary to law, public policy, decency standards (including but not limited to regulatory pronouncements on issues such as Automatic Dialing-Announcing Devices and unsolicited live voice and fax calls), or any usage policies instituted from time to time by Yak; charge or allow others to charge any other person for the use of the Service without Yak's prior written agreement; alter or otherwise interfere with Yak's facilities, equipment, network or connections or use the Services in a prohibited, unlawful, or improper manner, including but not limited to, permitting fraudulent use.
Prior to suspension or termination, where circumstances allow and subject to the following, Yak will make reasonable efforts to provide You with reasonable advance notice of such suspension or termination, stating the reason for the such suspension or termination, the amount owing (if any) and any notice period, determined in Yak's reasonable discretion, during which You may have the opportunity to rectify the reason for such suspension or termination.
You acknowledge and agree that termination or suspension does not remove or otherwise affect Your responsibility to pay all fees owed by You to Yak up to the date of termination or suspension.
Notwithstanding anything contained herein to the contrary, Yak will not provide notice of a proposed suspension or termination:
In the event of a suspension or termination of the Service, all features and other services, will also be suspended or terminated. You acknowledge and agree that a suspension or termination without notice will not affect Your obligation to pay any amounts owed to Yak either during or after the suspension or termination, including the full month's charges for the month in which Your Service is suspended or terminated.
If the Service is suspended or terminated for non-payment or otherwise for cause relating any of the reasons listed above, a reconnection charge may be applied for reconnecting the Service. Following a suspension or termination of Service, Yak cannot guarantee the availability or resumption of any previous numbers, codes or other identifiers that may have been applicable to You.
For all Services other than Yak High Speed Internet, Yak Digital Phone and Yak Home Phone, Yak permits You to terminate Your Service at any time by contacting Yak's Customer Service. You acknowledge and agree that You will continue to be responsible for all applicable charges up to and including the effective date of termination, and that for certain Services (e.g., Yak Long Distance), there may be a transition period before You are moved to another provider and will therefore continue to be liable for any Yak charges incurred during such period.
For Yak High Speed Internet, Yak Home Phone and Yak Digital Phone, Yak permits You to terminate the Service at any time by contacting Yak's Customer Service. Your account will be terminated thirty (30) days from the end of the current monthly billing period following the date of notice of cancellation to Yak. You acknowledge and agree that You will continue to be responsible for all applicable charges up to and including the effective date of termination. Your account will be charged the regular Service fees (including any applicable Service Modem Fees or ServiceDevice Fees, Non-Return Fee, if any, and other applicable fees and charges, plus applicable taxes, for the termination period, less any applicable deposits or pre-payments.
The further statement of Your right to cancel below is in accordance with legislation that may apply in Your province of residence.
You agree to notify Yak immediately, in writing or by calling the Yak customer support at 1.877.YAK.4YAK (1.877.925.4925), if You become aware at any time that Your Service (or any aspect of the Service such as password, PIN or card number) is being or has been stolen or fraudulently, improperly or unlawfully used. When You notify us, You must provide Your account number and a detailed description of the nature of the fraudulent, improper or unlawful use of the Service. Failure to do so in a timely manner may result in the termination of Your Service and additional charges to You. You will be liable for all use of the Services, irrespective of fraudulent, improper or unlawful use of the Services. You are responsible for the security of Your authorization codes, passwords and PIN numbers, if any, as well as any and all access to Your telephones, telecommunications, Internet systems and Service.
Credit and Personal Information
You consent and agree that Yak has the right to and may check Your credit rating from time to time, including in advance of initiating Service for You. You consent to the receipt and provision of account information from and to credit grantors and credit bureaus, as well as collection agencies if and as required. You agree that, for Services other than Yak Dial-Around, You will give Yak prior written notice of any changes to Your billing information, including but not limited to Your new address, new contact information and any revised credit card or other authorized payment mechanism information.
Yak cannot ensure or guarantee the privacy of any information You choose to transmit through use of Yak High Speed Internet Service. Any such use shall be at Your sole risk and Yak, its affiliates, agents and suppliers shall be relieved from all liability in connection therewith.
Consent Regarding Personal Information History
In order for us to process Your application for services and Your ability to meet Your financial obligations to Yak, You authorize Yak and its agents or assigns: (1) to request and obtain personal information about You on an ongoing basis from credit bureaus from information they previously collected about You in order to assess Your credit history; and (2) to co-operate with local, provincial and national authorities in the investigation of unlawful or improper activities in order to endeavor to protect You and Yak from fraudulent transactions.
Unless You provide express consent, or disclosure is required pursuant to a legal power, all information regarding You kept by us, other than Your name, address and listed telephone number, is confidential and may not be disclosed by us to anyone other than:
Express consent to disclosure may be obtained as follows:
Provision of Service
The Service is only available where it is possible and commercially reasonable for Yak (in the sole determination of Yak) to provide such Service. You acknowledge and agree that Yak may conduct a preliminary check to determine if a Service is available in Your area. In addition, Yak is not required to provide Service to You where (1) Yak would have to incur unusual expenses which You will not pay; for example, special construction; (2) You owe amounts to Yak that are past due other than as a guarantor; and (3) You do not provide credit information satisfactory to Yak or a reasonable deposit, as requested by Yak from time to time and as determined, at least in part, by Your Usage patterns and quantity. Deposit interest will be calculated from receipt date of deposit, based on the original deposit amount, at simple interest apportioned monthly based on the prime lending rate posted by the Bank of Canada less 2%. Yak may provide partial services in current service areas at a higher cost than reflected on www.yak.ca based on the location of the customers’ residence.
Yak may interrupt Your Service at any time for any duration of time, without any notice or liability, in order to install, repair, replace or to perform necessary maintenance on the telecommunications equipment, facilities or network, or for other technical reasons as may be required.
Yak does not guarantee uninterrupted operation of Service, or of its equipment, facilities, connections or network, or that there will not be delays, errors, defects or failures associated with the Services.
Payments and Billing
You are responsible for payment to Yak of charges for all Services provided, including all calls originating from the customer's premises and all calls charged to the customer's line where any person answering the customer's line agrees to accept such charge. You acknowledge that other than for Yak Dial-Around, Yak collects all charges pursuant to Yak's preauthorized payment service, and that Yak will debit Your credit card (Visa, MasterCard or American Express) or bank account (via electronic funds transfer following provision of a void cheque by You), generally on the 21st day of the month following the calendar month to which the charges apply. If You subscribe to certain Services (e.g., Yak Travel Card), Your credit card or account may be debited earlier and more frequently if Your account balance reaches $5 or more. Yak Dial-Around is billed by Your local voice service carrier on Your local telephone bill according to the billing cycle and practices of that carrier.
In the event Yak is unable to debit Your credit card or bank account, or otherwise is not paid in respect of Your use of Service, in addition to any other remedies available to Yak, Yak will charge an administrative fee and late charges at a monthly compounded rate of 2% (24% per annum). Yak will review any disputed charge, provided You continue to pay the undisputed portion and subsequent invoices.
Yak may require a security deposit where You have an unsatisfactory credit rating. Yak will review the continued appropriateness of such deposits at six month intervals and will provide a reimbursement of the deposit by way of application of the amount to Your current account with accumulated interest, provided that timely account payment history has been demonstrated. When service is terminated, Yak will promptly refund the deposit with accumulated interest, retaining only any amount then owed to it by You. Deposits will earn interest in accordance with Yak's Terms of Service.
Deposit interest will be calculated from receipt date of deposit, based on the original deposit amount, at simple interest apportioned monthly based on the prime lending rate posted by the Bank of Canada less 2%.
You acknowledge that Yak may not issue cheques for refunds for any amounts lower than ten dollars ($10.00). In the alternative, You agree that that any refunds lower than ten dollars ($10.00) will be credited against Your account or, at Yak's discretion, may be subject to a reasonably processing fee to refund. Except in the case of deception, You will not be responsible for paying a previously unbilled or under-billed charge that is billed more than one year following the end of the month in which such charge was incurred. Improperly billed or over-billed charges will be credited, provided that You dispute such charges within 150 days of the date of the bill.
Usage charges for all Yak long distance voice Services will be billed individually in one minute increments, subject to a one minute minimum charge. Any fraction of an increment will be rounded to the next highest increment. Call timing will be determined conclusively by Yak's network systems. Any fraction of an increment will be treated as an entire increment. Usage charges are exclusive of applicable taxes, including federal and provincial sales taxes.
A monthly paper billing charge of $1.95 applies if You choose to receive Your invoices by mail. There are no billing charges if You choose to receive Your invoices through Yak's automated email billing system, or in the case of Yak Dial-Around where the service is billed on Your local phone company's bill.
You agree to pay all taxes, surcharges, and fees set by the government. We may not always give advance notice of changes to these items. If You're exempt from retail sales tax, we need Your exemption certificates. You agree to pay for any filings we make related to Your exemptions.
Customer Payment Notice
Customers are required to pay their monthly account balance in full within thirty (30) days of invoice date. Accounts carrying a balance at or after this time will be suspended and/or cancelled until full payment is received. Suspended Yak Home Phone, Yak Digital Phone and Yak High Speed Internet accounts will be charged a $35 CAD suspension charge. Reactivation of suspended Yak Home Phone, Yak Digital Phone and Yak High Speed Internet accounts will be charged a $35 CAD reactivation fee.
You agree that any equipment that You attach to Yak's Services will, subject to any further regulatory requirements, not damage, interfere with or create a hazard of damage or impair the functioning of Yak's Service, equipment or channels or create a hazard of danger to the users of the Company's service, equipment or channels, its employees, subcontractors or the public. Yak does not make any representation that it's facilities and Services are adapted to the use of Your provided equipment.
You agree that You will be responsible for reprogramming and reconfiguring all security systems, computers, routers, speed dial functions and any other equipment You connect to Yak's Services as a result of a telephone number change, email address change, access line or other change to Your Yak Services. You further agree that You will be liable for all such reprogramming and reconfiguration costs and that You will be responsible for any losses associated with Your failure to make the necessary changes.
Warranty Disclaimer and Limitation of Liability
Each of the following parties will also be entitled to the benefits and protections afforded to Yak under this Warranty Disclaimer and Limitation of Liability section: Yak affiliates which are not party to these Terms of Service; any of Yak's subcontractors and interconnection service providers; Yak's employees, directors, officers, agents, representatives, successors; and assigns of any of the foregoing entities.
Except as specifically provided in these Terms of Service, Yak makes no representations or warranties of any kind in connection with its network, connections, equipment, facilities or service, as contemplated herein, whether written or oral, statutory, express or implied, including without limitation the warranty of merchantability and the warranty of fitness for a particular purpose or use, and all such representations, warranties or conditions of any kind are, to the extent permitted by applicable law, hereby excluded.
The parties agree that Yak shall in no event be liable to You or any other person for any indirect, consequential, special, incidental, reliance or punitive damages, or for any lost profits of any kind or nature whatsoever, regardless of the foreseeability thereof, arising out of the provision of service or in any way arising out of these Terms of Service and any related agreements, whether in an action arising out of breach of contract, breach of warranty, delay, negligence, strict tort liability, patent or intellectual property matters or any other legal or equitable theory. However, in the event a court of competent jurisdiction finds Yak liable, Your exclusive remedy and Yak's sole liability for damages to You for any cause whatsoever regardless of form of action, including negligence, shall be for direct damages only and, except in the case of death, bodily injury and physical damage to property, wholly caused by Yak's negligence, shall not exceed an amount equivalent to the ordinary price of the relevant service purchased for one (1) month (to be determined as an average of billings in respect of such service over the closest previous three months in which there were no such problems or defects in the service). No action or proceeding against Yak may be commenced more than one (1) year after the event giving rise to such claim. The provisions of this section shall survive termination of these Terms of Service.
Without limiting the generality of the foregoing, Yak is not liable to You, any other user or other person for damages resulting from:
In addition to any other indemnities in these Terms of Service, You agree to indemnify, defend and hold harmless Yak, its affiliates, and each of the their shareholders, directors, officers, employees, agents, contractors, licensors and suppliers from and against all claims, losses, expenses, damages and costs, including reasonable legal fees, resulting from any action, inaction or breach of these Terms of Service by You or other users. The provisions of this section shall survive termination of these Terms of Service.
Yak Intellectual Property
Yak or its affiliates or licensors, as the case may be, are the exclusive owners of all names, trade-marks, trade names, service marks and any copyright material relating to the Services ("Intellectual Property"). Nothing in these Terms of Service contemplates or creates permission of use of Intellectual Property for any marketing or advertisement by You or a transfer of license of Intellectual Property from Yak to You.
Other than with respect to payment, Your and Yak's obligations pursuant to these Terms of Service will be suspended, pending resolution of any cause, event or proceeding reasonably outside of their control, provided You or Yak, as the case may be, pursue remediation of such impediment to the maximum extent possible with reasonable dispatch and effort.
Changes, Modifications or Termination of Plans or Plan Features
Without incurring liability, Yak may at any time and without notice to You, change, modify or terminate any Service, plan or Service or plan features, in whole or in part (including the rates or charges for all customers who at such time are not subject to a future term commitment). In the event of any such change or modification, You will be responsible for paying all charges incurred for use of such Service including any charges arising out of the change or modification. In the event of a termination of a Service, plan or Service or plan feature by Yak, You will be responsible for paying all charges incurred up to the applicable termination date.
Dispute Resolution and Mandatory Arbitration
Instead of suing in court, You and Yak each agree to settle disputes (except small claims that that can be dealt with pursuant to the jurisdiction of the Small Claims Court of Ontario) only by arbitration. The rules in arbitration are different. There's no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honour the same limitations in these Terms and Conditions, as a court would. To the fullest extent permitted by law we each agree that in the event that the Yak and You (collectively the "Parties" and individually, a "Party") cannot resolve a dispute within a time frame satisfactory to the Party raising the dispute, then, the dispute must be referred to arbitration by a single arbitrator in accordance with the Arbitration Act (Ontario). If the parties are unable to agree, within three (3) business days, on a single arbitrator who will be named to resolve the dispute, either Party may apply to the Ontario Superior Court of Justice to appoint a single arbitrator who will be suitably qualified by education and professional experience to deal with the matters that are the subject of the arbitration. The arbitration will take place in Toronto, Ontario. The decision of the arbitrator shall be in writing, stating the reasons for the award, shall be final and binding on the parties to the arbitration and no appeal shall be taken from any decision of the arbitrator unless the decision contains an error of law, which results in a determination that is patently unreasonable. If for some reason these arbitration requirements don't apply, each Party hereby waives any trial by jury.
Notices and Other Communications
Any notice or other communication will be in writing and will be provided by personal delivery, email or by facsimile to Yak or You as applicable, at the email address, regular address or facsimile number as set forth in Your service order(s). Notices delivered in person will be effective on the date of such delivery. Notices delivered by email or facsimile will be effective on the date of transmission, provided printed proof of transmission is obtained. Notwithstanding the foregoing, Yak may amend these Terms of Service, including with respect to any Service, plan or Service or plan feature as described in the paragraph above, from time to time as stated herein, and notice will be effective by virtue of Yak posting such revised Terms of Service on its website.
You may not assign, lease, resell or transfer the Services to a third party without the prior written consent of Yak. Yak reserves the right to terminate the Services and the use of the Service, without any liability to You whatsoever in the event that You assign, lease, resell or transfer Services to a third party assignment by Yak, and transfer of personal information, to an affiliate of Yak or in any change of control transaction of Yak without the prior written consent of Yak.
The terms and provisions of these Terms of Service may only be waived in writing. No failure by Yak to insist upon Your performance of any obligation in these Terms of Service will constitute a waiver of the obligation.
The invalidity, illegality or unenforceability of any one or more provisions of these Terms of Service will not impair any other provision in these Terms of Service.
You confirm that You accept these Terms of Service, as well as all other related documents, including notices, in English only, unless You specifically request French correspondence. Residents du Québec Seulement - Les parties aux présentes confirment leur volonté que la présente convention, de même que tous les documents s'y rattachant, y compris tout avis, soient rédigés en anglais seulement, à moins d'une demande expresse de l'une des parties à l'effet que les documents échangés soient rédigés en français.
These Terms of Service and any related agreements will be governed in all respects by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein.
Service Specific Terms, Rates and Charges
Please see Yak's web site at www.yak.ca or contact Yak Customer Service as provided in these Terms of Service for updated rates, fees, surcharges, pricing and features applicable to any specific Service, including those described below.
Yak Long Distance
Yak Direct Bill Dial-Around
Yak Travel Card
Yak Mobile Long Distance
Yak High Speed Internet
Yak Digital Phone
9-1-1 EMERGENCY CALLING LIMITATIONS USING YAK DIGITAL PHONE SERVICE
9-1-1 emergency calling using Yak Digital Phone Service provides a more limited form of 9-1-1 emergency calling than that available using traditional wireline 9-1-1 emergency calling. You acknowledge and understand that when You dial 9-1-1 using Yak Digital Phone Service, Your 9-1-1 emergency call will be subject to the following limitations:
(a) Your 9-1-1 emergency call will be routed to a third party call centre agent designated by Yak (an "Operator") before being transferred to the appropriate Public Service Answering Point ("PSAP"); The use of a call centre increases delays related to handling of 9-1-1 emergency calls and thus increases the risk to the individual in an emergency calling situation;
(b) Unlike traditional wireline 9-1-1 emergency calling, Yak Digital Phone Service will not automatically provide such Operator with Your address and telephone number. You must orally provide the Operator with Your address and telephone number. Once You have successfully provided the Operator with all of the required information, the Operator will route Your call to the appropriate PSAP which serves the address You have provided;
(c) When making a 9-1-1 emergency call, do not hang up until requested to do so, and if You are prematurely disconnected, You must call back. The Operator and the PSAP do not have an automatic call back capability;
(d) The 9-1-1 emergency call may not be handled by the PSAP in the same way as traditional wireline 9-1-1 services;
(e) 9-1-1 emergency calls made from locations outside of Canada cannot be completed by the Operator. The caller will be told to use an alternate service to dial 9-1-1;
(f) If there is a power outage, such outage will prevent all elements of the Service, including 9-1-1 emergency calling, from working; and
(g) Yak Digital Phone Service utilizes an Internet connection and the public Internet. As a result, there is a greater possibility of network congestion, other types of service outages and/or reduced speed in the routing of a 9-1-1 emergency call as compared to traditional wireline 9-1-1 emergency calling.
User Obligations In Respect of 9-1-1 Emergency Calls:
(a) to ensure your contact information on file with Yak is always accurate and kept current;
(b) to inform any persons with access to the Yak Digital Phone Service being provided to You of the 9-1-1 emergency calling limitations set forth in these Terms of Service; and
(c) that when installing or moving the location of Your Voice over Internet Protocol ("VoIP") telephone or VoIP telephone adaptor from one address to another, You will always make sure that You record the current address and telephone number in a location easily visible from each telephone connected to the Service so that it can be communicated to the Operator and the PSAP by any potential user of Digital Phone Service in an emergency.
Indemnity In Respect of 9-1-1 Emergency Calls:
Without limiting the indemnification obligations in these Terms of Service, You further agree to indemnify and hold Yak, its officers, directors, employees, suppliers and agents harmless from any and all third party claims or actions arising out of any misrouted, blocked and/or delayed 9-1-1 emergency calls made using the Yak Digital Phone Service being provided to You.